PIPEDA Case Summary #319
ISP's anti-spam measures questioned
(Section 2; Principle 4.3)
The complainant alleged that his internet service provider (ISP) was reading
his outgoing e-mail messages and, as a result, was declining to route them if
they were not destined to travel through the ISP’s mail servers.
Summary of Investigation
The complainant subscribed to the ISP’s high-speed internet service.
He also subscribed to a web-centred company’s third-party e-mail service, which
allows individuals to send and receive e-mail messages from external mail
accounts. The complainant was upset because he could not send e-mail
without going through his ISP’s mail servers.
The complainant contacted his ISP about this matter. The ISP stated
that it was making its customers use its outgoing mail server because it has
anti-spam measures in place. It maintained that as a responsible network
administrator it had to implement network security measures to protect its
network and its users.
The complainant was concerned that in order to route outgoing mail through
its mail servers, the ISP was inspecting and screening his outgoing e-mails
without his consent. He stated that his ISP’s technical support staff
told him that it was “snooping” into the user portion (TCP portion) of a packet
and when the specific field for the TCP Port was set to 25, the ISP was
blocking access to outside e-mail servers. He believed that the port
information is indivisible from the rest of the packet; therefore, by reading
the port address, the ISP was reading the entire e-mail.
The ISP stated that its automated systems must identify elements of a packet
(i.e. the address and port information) in order to correctly route the message
and provide basic e-mail service. It added, however, that there is no
inspection of the content of the packet stream at all, aside from the standard
inspection of the source and destination IP address in order to make a routing
decision, and the inspection of the source and destination TCP port addresses.
If the port address is 25, the ISP will identify the destination IP address
to make sure that the e-mail is being routed through its mail server. The
complainant was trying to route his e-mails through the outside mail server,
and he believed that his ISP did not have the right to know that he was using
the other web-centred company as a third-party mail provider.
The ISP stated that it blocks e-mail messages that are not bound for its
mail servers. If e-mail traffic does not go through its mail servers, then
it also bypasses the spam filtering mechanisms that would combat spam.
Blocking e-mail from port 25 is in keeping with Industry Canada’s Spam Task
Force’s Recommended Best Practices for Canadian ISPs and Other Network
Operators. The complainant indicated that he believes he has the right to
send spam as there is no law against it, only the aforementioned best
The ISP stated that it is looking for TCP 25 in a packet header’s
destination port field. If the packet is marked with a destination port
of TCP 25 and has a destination IP address of any network other than the ISP’s
mail servers, the packet is deleted. In other words, the message is not
routed. Under the terms of service that the complainant agreed to as a
residential high-speed customer, all e-mail must be routed through the ISP’s
The company’s acceptable use policy for internet access services prohibits
the customer from engaging in or assisting others to engage in any activity
that violates applicable policies, rules or guidelines of the ISP or of other
on-line service providers, including the posting, uploading, reproducing,
distributing, otherwise transmitting, or collecting of spam. The customer
is also prohibited from engaging in any conduct that directly or indirectly
encourages, facilitates, promotes, relies upon or permits such prohibited
activities including failing to implement reasonable technical or
administrative measures to prevent spam.
The ISP’s internet services account agreement states that the user
acknowledges having read the ISP’s privacy commitment, and that the user
consents to the collection, use and disclosure by the ISP of personal
information collected in connection with the provision or use of the ISP’s
internet services, solely for the purposes identified in the privacy
commitment. According to the ISP’s privacy commitment, it collects
personal information for the purpose of providing service.
The agreement also states that the user agrees that the ISP has the right
to, without notice, monitor use of the ISP’s internet services and monitor,
review and retain such content, material or information if ISP believes in good
faith that such activity is reasonably necessary to provide the ISP’s internet
services to customers.
Although at first the complainant denied ever accepting the terms of
service, the ISP provided the Office with evidence to the contrary, in the form
of a printout from its billing system that shows the complainant accepted the
terms on three separate occasions, the first being when he originally signed up
for high-speed service in December 2002. He also received a welcome
e-mail that references the terms. He nevertheless contended that,
although he accepted the terms of service agreement, he was not aware of the terms.
Issued November 8, 2005
Application: Section 2 states that personal information is
“…information about an identifiable individual….” Principle 4.3 stipulates that
the knowledge and consent of the individual are required for the collection,
use, or disclosure of personal information, except where inappropriate.
In making her determinations, the Assistant Privacy Commissioner deliberated
- The first issue the Assistant Commissioner considered was
whether any of the information under discussion in this complaint could be
considered “personal information” as defined in section 2.
- In her view, an IP address can be considered personal
information if it can be associated with an identifiable individual.
- In the complainant’s case, he is assigned a dynamic IP
address, which means that it changes each time he logs on. This IP
address was associated with the particular computer he was using.
- The ISP does not identify the user before he or she is
allowed to send e-mail, but ensures that the user is directly connected to
the ISP network and is therefore a customer of the ISP.
- For the purposes of this complaint, which involved the
sending of e-mail by the complainant, the Assistant Commissioner accepted
that the originating IP address identified the complainant and was
therefore his personal information, as per section 2.
- The ISP needs to know the destination IP address in order
to deliver the message that is being sent. A port address, however,
is not personal information as it is not linked to an identifiable
- The complainant accepted the terms of the service
agreement, which specify that the ISP collects and uses personal
information for the purpose of providing service. By virtue of
sending e-mail, the complainant also consented to the ISP reading the IP
addresses to route the mail.
- She therefore did not find the ISP in contravention of
Principle 4.3 when it reads the originating IP address.
- As for the allegation that the ISP reads the contents of
the entire e-mail packet without the complainant’s consent, the Assistant
Commissioner determined that there was no evidence to suggest that this
was the case.
- The ISP denied that it reads anything apart from the IP
and port addresses (the latter is not personal information). When
the port information on the address is read, it is read by the ISP’s mail
servers, electronically. No person actually reads the e-mail in this
- The process of reading and routing e-mail address
information does not require the servers to access or read the user
portion of the e-mail. The software program is set to access a
predetermined portion of the address, and therefore this is the only
portion of the address that is read.
- The Assistant Commissioner therefore found that the ISP
did not contravene Principle 4.3.
She therefore concluded that the complaints were not well-founded.